A weblog for students engaged in doctoral studies in the field of human rights. It is intended to provide information about contemporary developments, references to new publications and material of a practical nature.

Tuesday, 14 October 2008

Another Setback for the Prosecutor in the Lubanga case

Yesterday, the Appeals Chamber of the International Criminal Court dismissed an application by the Prosecutor to produce new evidence in its appeal of the decision of the Trial Chamber granting a stay of prosecution to Lubanga and, in effect, putting an end to the trial: http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-1476-ENG.pdf. Back in June, the Trial Chamber put an end to proceedings because the Prosecutor had failed to disclose evidence to the defence that it had obtained on a confidential basis from the United Nations and from come NGOs. Since filing the appeal, the Prosecutor has continued to make efforts to resolve the situation. In early August, he spoke at the Salzburg summer school on international criminal law and seemed confident that the situation would be repaired and that the trial would go on. But Professor Kai Ambos, who also spoke at the summer school, was not as optimistic. He pointed to the inadequacies in the Prosecutor’s recent attempts to disclose the evidence in question. Late in August, the same Trial dismissed a motion by the Prosecutor that was based upon his efforts since the June decision to unblock the situation. Then the Prosecutor applied to the Appeals Chamber for it to consider more recent developments in considering the appeal of the June judgment. But the defence objected, and the Appeals Chamber agreed. The appeal concerns the facts as they stood when the Trial Chamber issued its judgment in June. Any new facts have to be considered by the Trial Chamber first. They cannot simply be imported into the Appeals Chamber.Thanks to Yvonne McDermott.

2 comments:

It does not effectively put an end to the Lubanga trial! The stay is indefinite but not permanent, and the disclosure proceedings are continuing before the Trial Chamber (TC). The TC will keep the stay in place until all documents can be viewed by the judges under appropriate circumstances. You have to be the ultimate pessimist to think the prosecutors and those NGO's who are foolishly refusing to trust the ICC judges to view evidence in camera will continue to resist once they see the only option is to permanently discontinue the trial. We are far from such a position, I believe. Those coming from a civil law background simply do not understand that the stay is merely a coercive tool to get the trial moving again. The way some continental scholars and lawyers are melodramatically overreacting is worse for the Court than any temporary stay imposed by an independent chamber.

The prosecutor refused to disclose the evidence to the judges, not the defence. The judges want to determine whether the evidence must be disclosed to the defence. It is most likely once the judges see the evidence, they would determine that the defence need not see it. This would depend upon whether there would be a need to conduct further investigation into the evidence. Usually the exculpatory evidence provided by the prosecutor is not that kind of evidence.

The key for re-starting the Lubanga trial is in the hands of the NGOs. For some reason they do not trust the judges of the ICC to confidentially examine the evidence they have given to the prosecutor. Even if the judges viewed the evidence and decided the defence would have to see the evidence at a trial, there would be no defence disclose without consent. Their fears are so unreasonable that I cannot but believe they will come to their senses. Their unreasonable fears are most likely the only obstacle to the trial.

The Editorial Team

W. Schabas, Y. McDermott, J. Powderly, N. Hayes

William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy. Here is the full c.v.

Dr YvonneMcDermott is Senior Lecturer in Law at Bangor University, UK, where she is also Director of Teaching and Learning and Co-Director of the Bangor Centre for International Law. Yvonne is a graduate of the National University of Ireland, Galway (B. Corp. Law, LL.B.), Leiden University (LL.M. cum laude) and the Irish Centre for Human Rights (Ph.D.). Her research focuses on fair trial rights, international criminal procedure and international criminal law. She is the author of Fairness in International Criminal Trials (Oxford University Press, 2016).

Niamh Hayes has been the Head of Office for the Institute for International Criminal Investigations (IICI) in The Hague since September 2012. She is about to complete her Ph.D. on the investigation and prosecution of sexual violence by international criminal tribunals at the Irish Centre for Human Rights, National University of Ireland Galway. She previously worked for Women's Initiatives for Gender Justice as a legal consultant, and as an intern for the defence at the ICTY in the Karadzic case. She has lectured on international criminal law and international law at Trinity College Dublin and, along with Prof. William Schabas and Dr. Yvonne McDermott, is a co-editor of The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2013). She is the author of over 45 case reports for the Oxford Reports on International Criminal Law and has published numerous articles and book chapters on the investigation and prosecution of sexual and gender-based violence as international crimes.

Joseph Powderly is Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. Between September 2008 and January 2010, he was a Doctoral Fellow/Researcher at the Irish Centre for Human Rights, where he worked, among other projects, on a Irish Government-funded investigation and report into the possible perpetration of crimes against humanity against the Rohingya people of North Rakhine State, Burma/Myanmar. He is currently in the process of completing his doctoral research which looks at the impact of theories of judicial interpretation on the development of international criminal and international humanitarian law. The central thesis aims to identify and analyze the potential emergence of a specific theory of interpretation within the sphere of judicial creativity. Along with Dr. Shane Darcy of the Irish Centre for Human Rights, he is co-editor of and contributor to the edited collection Judicial Creativity in International Criminal Tribunals which was published by Oxford University Press in 2010. He has written over 80 case-reports for the Oxford Reports on International Criminal Law, as well as numerous book chapters and academic articles on topics ranging from the principle of complementarity to Irish involvement in the drafting of the Geneva Conventions. In December 2010, he was appointed Managing Editor of the peer-reviewed journal Criminal Law Forum. His research interests while focusing on international criminal and international humanitarian law also include topics such as the history of international law and freedom of expression.

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Interested in PhD studies in human rights?

Students interested in pursuing a doctorate in the field of human rights are encouraged to explore the possibility of working at Middlesex University under the supervision of Professor William A. Schabas and his colleagues. For inquiries, write to: w.schabas@mdx.ac.uk.